EPA:

'Drastic enforcement cases' heralded arrival of fledgling agency

Emily Yehle, E&E reporter

Greenwire: Thursday, December 2, 2010

U.S. EPA's radiation program began with two managers splitting up employees like team captains on a school playground.

Half the staff stayed at the Department of Health, Education and Welfare (HEW) -- now the Department of Health and Human Services -- to focus on radiation in consumer products. The other half became inaugural employees of EPA, charged with studying radiation's environmental effects.

"And that's the way in which people got assigned. People didn't get a choice," Chuck Elkins, who was on the presidential committee that helped create EPA, said in a recent interview. He then added with a chuckle, "The rumor I don't think is true is they also divided the lab equipment the same way and each group got only a part of the same electron microscope!"

EPA celebrates its anniversary today, marking 40 years since hundreds of federal employees were pulled from positions at HEW, the Department of Agriculture and other agencies to form a new entity tasked exclusively with environmental protection.

The White House recognized the milestone today with a presidential proclamation, praising the agency for its efforts to respond to the nation's "most urgent environmental challenges."

"Four decades after its creation, EPA is building on its legacy of responsible stewardship and advancing environmental quality in the face of new challenges," President Obama's proclamation said. "As we strive to protect the integrity of our planet in the 21st century, EPA continues to lead on critical global issues like reducing mercury pollution, fighting for environmental justice in overburdened communities, and confronting global climate change."

The agency got to this point through years of trial and error. Officials debated the agency's regulatory role, scientists set environmental standards, and employees settled into new duties.

But a diverse collection of environmental programs began to come together under a single banner, and lawyers led the way. The agency's first administrator, William Ruckelshaus, came to EPA from a deputy attorney general's post in Indiana.

"Basically, these were not strong regulatory programs at the beginning. But the administrator, when he took over, decided to lead off with some dramatic enforcement cases," Elkins said. "That helped to reinforce the fact that this was going to be a regulatory agency that everyone would have to pay attention to."

EPA regulatory muscle is getting a lot of attention these days, and much of it is from Republicans critical of the agency's efforts to limit greenhouse gas emissions under the Clean Air Act. Nevada Republican Sharron Angle -- who unsuccessfully ran against Senate Majority Leader Harry Reid (D) in the midterm elections -- even called for EPA's dissolution during her campaign.

But the agency was not always the target of partisan attacks.

A Republican president, Richard Nixon, created EPA, and some of the agency's milestones occurred under Republican administrations. For example, the Clean Air Act had its last major alteration in 1990 during the administration of George H.W. Bush.

"I think EPA has had some very good times under Republican administrations and under Republican presidents," said Bob Wayland, a former director of wetlands who spent almost 30 years at the agency. "In those early days, there were a lot of Republicans who were quite green. It wasn't seen as much as a partisan issue."

Among the green Republicans who battled to pass environmental legislation, Wayland recalled, were the late Sens. John Chaffee of Rhode Island, Robert Stafford of Vermont and former Sen. Howard Baker of Tennessee. He credited former Reps. Sherwood Boehlert of New York and Wayne Gilchrest of Maryland with helping repel assaults on EPA by House Republicans in more recent years.

Many credit Rachel Carson's "Silent Spring" with sparking the widespread environmental concern that led to Nixon establishing EPA. The book -- which argued that pesticides would lead to declining bird populations -- helped begin a nationwide conversation on protecting the environment when it was published in 1962.

But it wasn't until Nixon took office in 1969 that the idea for an environmental agency got traction.

Initial budget: $768M

Determined to streamline government, Nixon entrusted businessman Roy Ash with heading up the President's Advisory Council on Executive Organization, or the so-called Ash Council.

The panel's recommendations led to the creation of the Office of Management and Budget, the National Oceanic and Atmospheric Administration -- and EPA.

Elkins was on the subcommittee that created EPA's organizational structure and chose which existing government programs would fall under the new agency's umbrella.

The decisions, he said, were not clear-cut. Panel members debated for long hours, he said, on how to split up long-running programs in HEW, USDA and the Interior Department.

The result was an agency with 5,322 employees and a combined budget of about $768 million.

By 1971, Nixon was requesting $1.4 billion and 400 additional employees. Legislation helped bolster the agency's mission; 1970 saw the passage of the Clean Air Act, followed by the Clean Water Act in 1972 and the Safe Drinking Water Act in 1974.

The agency now has more than 17,000 full-time employees and a budget of more than $10 billion. In the intervening 40 years, EPA has succeeded in establishing and enforcing environmental standards throughout the country.

But EPA also faces some of the same battles it did at the beginning. Wayland pointed to Louisiana's struggle to protect eroding coastal wetlands and stem nutrient pollution that has spurred the formation of a vast "dead zone" -- an area where levels of dissolved oxygen are too low to support marine life -- in the Gulf of Mexico. And there are still raging debates, he said, over EPA's cleanup plans for the Chesapeake Bay.

At issue in both the Chesapeake and the Gulf pollution problems, he said, is limiting so-called nonpoint pollution -- nutrients and sediment washing off farm fields, highways and developed areas -- as opposed to wastes discharged from sewage-treatment plants and other industrial facilities.

Strong regulatory efforts have helped clean up wastewater discharges, but efforts to clean up nonpoint pollution have frequently stalled over the opposition to the costs of limiting those contaminants.

"The tricky part is there's nothing in the Clean Water Act that gives EPA the authority to compel nonpoint sources," Wayland said. "We're really reaching to [the] limit of what can be done."

Need to show 'some progress'

EPA began as a conglomeration of programs primarily focused on research and education.

Before EPA was formed, federal officials rarely -- if at all -- enforced pollution standards, leaving that responsibility to state governments. Instead, they used other tactics; one Interior official was famous for holding interstate water pollution conferences where he tried to embarrass violators on a public stage.

That changed when EPA opened its doors in 1970. Administrator Ruckelshaus then presided over an organization with lawyers and political appointees at the top. As the former deputy attorney general, he did not shy away from threatening cities and companies with lawsuits.

Less than two weeks after EPA opened, Ruckelshaus told the mayors of Cleveland, Detroit and Atlanta that they had six months to comply with water pollution standards before EPA brought them to court. He also tackled some of the more controversial issues; the agency banned DDT, for example, after years of debate over its effect on birds.

In an interview for an EPA oral history project decades after his tenure, Ruckelshaus said he aimed to "show the public that there was some progress being made."

"[I]t was important for us to advocate strong environmental compliance, back it up, and do it; to actually show we were willing to take on the large institutions in the society which hadn't been paying much attention to the environment," he said. "That included both public and private sectors. The private sector polluters, like the big steel companies who hadn't paid much attention to the problem, needed to be pushed very hard for compliance. The cities also needed to be pushed to move forward."

Of course, in the hurry to enact change, there were some missteps. At one point, Ruckelshaus decided to ban phosphates from all detergents because of the chemical's contribution to dead zones. But three days before the ban was to go into effect, samples of a new phosphate-free detergent showed up on the door knobs of Cincinnati, Ohio, homes.

The promotional effort -- ostensibly by a company eager to sell a new product -- backfired. Media reports revealed that the new detergent could be health-threatening if a child swallowed it, and the surgeon general reversed his support for phosphate removal. EPA and other agencies ended up recommending the continued use of phosphate detergent, albeit with precautions.

"Looking back on that early decision now, I think there's some truth to the fact that we hadn't thought through all the implications," said Elkins, who was an adviser to Ruckelshaus at the time. "We hadn't thought as thoroughly about it as I think the agency would today."

Getting other federal agencies to cooperate could also be a problem.

Wayland remembers the difficulty of enforcing the Clean Water Act with the Army Corps of Engineers. The two agencies "came from different places," he said; the corps was tasked with ensuring navigable waterways, while EPA was focused on preserving wetlands.

"The most memorable thing was they issued a press release that basically said every farmer who had a stock pond would need to get a federal permit," he said. "They clearly were concerned about the scope of the program they were supposed to administer."

'You could get things done'

But that animosity gradually faded, and the two agencies were able to make headway in preventing wetland loss.

Meanwhile, Ruckelshaus moved quickly and decisively to integrate enforcement throughout the agency's programs and regional offices.

Leonard Miller was 29 when he became head of the enforcement division in Seattle's Region 10 office in 1971. A graduate of Harvard Law School, he saw his role as a legal enforcer, working with industries to set pollution standards and then taking swift action if such standards were not met. Or, as he characterizes it, "making trouble."

He was faced with several obstacles. Among them: overwhelming paperwork, ineffective record-keeping and a culture that saw enforcement as a last-ditch option. Programs once dominated by scientists and engineers now had lawyers at the helm.

"You'll hear all kinds of negative things about being lawyers and lawyers running EPA. I think it's wonderful," Miller said. "I think it really brought in an energy and a desire to achieve and an appreciation for the levers of power and law and regulation and how to do things."

In the agency's first years, Miller said employees were divided between "science and enforcement." Some thought the agency should wait for research-backed data and then work with industry officials to implement agreeable standards. Others saw any negotiation as permission to pollute; the standard, they argued, should always be zero emissions.

"And there we were, in the middle," Miller said, "trying to figure out how to move the ball forward, get some control of pollution, get the bit in their mouth, get them used to regulation because they had not been used to regulation before."

Miller and other enforcement officials ended up issuing permits before the EPA released its final discharge guidelines. They negotiated with companies, but also did not hesitate to bring actions against those who did not follow the agreement.

He also developed a way to deal with lunch offers: pay for the entire meal himself.

"Now, I wasn't making very much money. I don't come from money. It was a big deal for me. But I wasn't going to let them pay for me," Miller said. "I wanted them to get the feeling 'Who the hell is this guy? He's a government worker and he's taking us out to lunch.'"

Eventually, Miller helped create the agency's National Pollutant Discharge Elimination System, which sets standards for issuing and enforcing permits. The program's development, Miller said, was done in the same way as much of the agency's early efforts: decisively and with less bureaucracy than the usual government undertaking. It was all hashed out by a "totally unofficial" committee comprised of employees from various levels of the EPA hierarchy.

"In the early days, that's basically what would happen," he said. "If a person like me had some feeling or understanding and was able to articulate what needed to get done and was able to put together a team of people who would do it, you could get things done."

Debate goes on

Getting things done is arguably more difficult today. The agency is sometimes criticized for acting too slowly. In a recent case, a federal judge in Florida ordered EPA to draw up a five-year plan to clean the Everglades after environmentalists filed a lawsuit claiming the agency's previous efforts were insufficient.

But Miller argued that such debates have existed since the beginning.

EPA, he said, has "accomplished a change of attitude on a generational basis." Environmental concern is no longer radical, and green technology is now considered the future economic engine.

"There is no difference between the debate about whether EPA is not following the science, is not going for zero discharge or is doing something that is politically acceptable," Miller said. "That debate's been going on forever. The difference is the debate's being done by people who were standing in a different place."